State v. Terrebone
This text of 590 So. 2d 105 (State v. Terrebone) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Defendant, Glen Terrebone, was charged by bill of information1 with committing aggravated sexual battery and simple robbery on January 3, 1989. Subsequently, the bill was amended to charge defendant with forcible rape, a violation of LSA-R.S. 14:42.1. The simple robbery charge was dismissed. Defendant was tried before a twelve member jury which found him guilty as charged. The State then filed a multiple offender bill against defendant alleging he had three felony convictions prior to this forcible rape conviction. Following a hearing, the trial court found defendant was a third-time felony offender and sentenced him to eighty years at hard labor without benefit of probation or suspension of sentence. He was given credit for time served.
On appeal defendant alleges the trial court erred in finding him to be an habitual offender; that his conviction was the result of a vindictive prosecution; and he requests an error patent review. For the following reasons the trial court decisions are affirmed.
Defendant challenges the habitual offender finding by attacking the validity of the predicate offense used to enhance his sentencing under LSA-R.S. 15:529.1.2
[107]*107At the multiple offender hearing, the State introduced into evidence the court records for defendant’s three prior felony convictions. The trial court refused to allow a 1973 theft conviction as the basis for enhancement because the record did not contain evidence that the defendant was properly “Boykinized” at the time he pled guilty. The defense raised no objections to the remaining two prior convictions. Although defendant is now procedurally barred from raising the issue of the sufficiency of the State’s proof of prior convictions for the multiple bill on appeal,3 State v. Martin, 427 So.2d 1182 (La.1983); in the interest of judicial economy, and because the record discloses the evidence to decide the issue, we will address defendant’s claims. State v. Ratcliff, 416 So.2d 528 (La.1982).
The defendant contends that he did not knowingly and intelligently waive his constitutional rights as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) when he pled guilty to an attempted armed robbery charge in 1975.4 He argues that the rights waiver and the Boykin colloquy in the record of that case do not show that he was advised of his right to remain silent at trial. Therefore, according to the defendant, the attempted armed robbery conviction cannot [108]*108serve as a predicate felony in the multiple offender proceeding.
The defendant’s argument has twice been rejected by this Court. In State v. Terrase, 468 So.2d 729 (5th Cir.1984) and State v. Hensley, 537 So.2d 857 (5th Cir.1989), the Fifth Circuit reviewed the adequacy of constitutional rights waivers similar to the waiver here challenged by the defendant. Both of those decisions refused application of the rigid rule now urged by the defendant to evaluate the sufficiency of constitutional rights waivers, ferrase and Hensley held that the record must be viewed as a whole to determine whether the defendant understood and voluntarily waived his trilogy of Boykin rights. Those holdings are consistent with the guidance of the Louisiana Supreme Court in State v. Yarbrough, 418 So.2d 503 (La.1982).
The record for the defendant’s 1974 guilty plea to charges of attempted armed robbery reflects that the trial judge explained the Boykin trilogy of rights to the defendant. The judge further inquired of the defendant and his counsel whether the defendant understood his rights. Only after assuring himself that the defendant knew his rights and voluntarily chose to waive them did the trial judge accept his guilty plea. Thus, the defendant’s prior felony conviction was properly used as a predicate offense for enhanced sentencing.
For the foregoing reasons, we find the trial court properly found defendant to be a third-time felony offender and, accordingly, his sentence is affirmed.
Following his conviction, defendant moved for a new trial alleging he was the target of a vindictive prosecution and thus the ends of justice would be served by granting a new trial. LSA-C.Cr.P. Article 851(5). After a hearing, the trial court denied this request.
Although this is a ground upon which the trial judge may grant a new trial, it presents nothing for this court’s appellate review. State v. Toomer, 395 So.2d 1320 (La.1981); State v. Cortez, 503 So.2d 76 (5th Cir.1987). Further, a review of the record reveals this alleged error is without merit.
An error patent review reveals one error. The transcript shows defendant’s sentence was to be imposed without benefit of probation or suspension of sentence as mandated by LSA-R.S. 15:529.1(G). The commitment specifies defendant’s sentence was imposed without benefit of probation, parole or suspension of sentence. Where a discrepancy exists between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732 (La.1983). Thus, the commitment is ordered amended to reflect defendant’s sentence is to be served without benefit of probation or suspension of sentence.
Accordingly, defendant’s commitment is amended to reflect his sentence is to be served without benefit of probation or suspension of sentence. In all other respects the judgment appealed from is affirmed.
AMENDED AND, AS AMENDED, AFFIRMED.
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Cite This Page — Counsel Stack
590 So. 2d 105, 1991 La. App. LEXIS 3134, 1991 WL 244356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-terrebone-lactapp-1991.